The report highlights several areas for potential reform including the entitlement of a surviving spouse where the deceased also left children, and more controversially whether cohabitants should be able to inherit automatically under the intestacy rules, and how much of any estate they should receive.
At present the current intestacy laws do not permit cohabitants to inherit anything if their partner dies without making a will. Some may be able to make a claim through the courts for provision out of the estate if the couple had been living together “as husband and wife” for two years prior to the death. Cohabitants are restricted to applying for a sum to meet their maintenance needs, whereas under the intestacy rules a surviving spouse takes capital (including all of the deceased's personal chattels, up to £250,000 of capital and a life interest in half the rest of the estate).
The Law Commission’s proposals include a suggestion that if a couple have been living together for over two years before the death of one of them, and/or they have children together there should be an automatic provision for the surviving partner, akin to the provision made for a spouse.
Although the document is only at the consultation stage, if the position for cohabitants under the intestacy rules does change this is entirely at odds with the position of cohabitants if their relationship breaks down, as they have little protection compared with the position of spouses on relationship breakdown.
It seems strange, to say the least, that the government has shelved any plans to change the law relating to living cohabitants, but has asked the Law Commission to look into the position of what should happen to the surviving cohabitant on death of a partner. To put it crudely, the proposals could mean that a cohabitant is potentially worth more to their partner dead than alive!
Meredith Thompson